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The European Genesis of Policies Against Secondary Movement

In the course of our research in Kenya and Uganda, Human Rights Watch discovered that the governments of Kenya and Uganda, as well as UNHCR are increasingly applying policies against "secondary movement" in their status determinations. Generally speaking, these policies prohibit asylum seekers from accessing a country's refugee status determination procedures if, prior to arrival in that country, they traveled (made a "secondary movement") through another country where they did or could have applied for refugee status and/or obtained protection. In such cases, the policies provide that the asylum seeker should be returned to the latter country to seek protection there, though protection is by no means guaranteed.

Policies against secondary movement are rooted in Europe's "safe third country" policies, which emerged with the advent of two European treaties: the 1985 Schengen Agreement50 and the 1990 Dublin Convention.51 Their signatories sought to counteract the greater openness of Europe's internal borders brought about by the European Union by limiting the movements of asylum seekers and other migrants. The Council of Ministers for Immigration added a third layer to European safe third country policy in 1992, with its Resolution on a Harmonized Approach to Questions Concerning Host Third Countries.52 The Resolution calls for the return of asylum seekers to any available non-E.U. "host third country" if a given asylum seeker will not face torture or a threat to her life or freedom there.

As a result, European governments routinely return asylum seekers to countries they have traveled through. In some cases, once they reach those "transit countries," asylum seekers are at risk of being deported once again to a state that does not have adequate refugee protection mechanisms in place and/or a state that has not even agreed to consider the claims of the particular individuals to be returned.

Individual European and other Western governments, such as the United Kingdom53 and Australia,54 have incorporated policies against secondary movement into their domestic laws as well. As of late September 2002, the U.S. and Canada were also considering such a policy.

Critique of Secondary Movement Policies

Most fundamentally, policies prohibiting secondary movements put asylum seekers at risk of being refouled to face torture and/or other serious harm. Refoulement can occur when a refugee is returned to any place where her life or freedom is at risk-that place could be her home country, but it could also be any other country she is sent back to. As a result, countries that expel asylum seekers to countries from which they have made a secondary movement risk violating their non-refoulement obligations. Human Rights Watch, the European Council on Refugees and Exiles, and many others have repeatedly criticized the clear risk of unlawful refoulement fostered by Europe's safe third country policies.55 The Executive Committee of UNHCR has alluded to this risk as well, asserting that "notions such as ... `safe third country' ... should be appropriately applied so as not to result in improper denial of access to asylum procedures, or to violations of the principle of non-refoulement."56

While supporters of restrictions on secondary movement often concede that return is never proper when refugees lives or freedom are put at risk, formal guarantees to this effect are rarely sufficient. As Human Rights Watch illustrates in this report, such guarantees are not rigorously applied, and the specific threats facing individual refugees in the first country they reach are not considered by decision-makers. As a result, many refugees slip through the cracks and are denied protection for secondary movement reasons, and are sent back to places where they are not in fact safe.

Secondary movement policies also needlessly interfere with family unity, contravening the Executive Committee's explicit command to receiving states "to facilitate family reunification of refugees on their territory, especially through the consideration of all related requests in a positive and humanitarian spirit."57 As Human Rights Watch has noted in the European context, "[f]amily members that enter [the E.U.] by different travel routes or under authorization of different countries may be required by the Schengen and Dublin systems to go through the asylum procedure in different countries."58 Moreover, those asylum seekers who leave their country of first refuge for a second country in order to reunite with family in the latter are similarly thwarted by secondary movement policies.

Problematic Use of Secondary Movement Policies in Kenya and Uganda

In Kenya and Uganda, individuals who have passed through a country where they are deemed to have had access to adequate protection are rejected by UNHCR or the government from having their status assessed and are instructed to return to that first country. Governments often argue that the policy is appropriate when refugees are simply moving to access better assistance, and Human Rights Watch did interview one twenty-one-year-old Somali woman whose decision to move on to Uganda from Kenya was based on her perception that she would receive more assistance in Kampala.59 But there are many other cases in which basic protection, rather than level of assistance, is the motive.

While UNHCR recognizes that the policy against secondary movement should not be applied to "a refugee who is compelled to move because of specific protection or security problems in his or her previous country,"60 this provision does not appear to be consistently and carefully applied during status determinations in Kenya and Uganda.

In Kenya, the primary country from which refugees make secondary movements is Uganda. However, as noted previously in this report, Uganda is not always a safe place for refugees. Rwandan and Congolese refugees often move on to Kenya after having security problems in Uganda. Although UNHCR claims to take such security problems into account, so that individuals with serious security problems in Uganda will not be denied status or access to UNHCR in Nairobi,61 Human Rights Watch learned of cases in which refugees were returned to Uganda even though they had grounds for fearing mistreatment there. Simon J., a Congolese refugee told the story of his brother-in-law who was afraid to stay in Uganda because of his family's work on behalf of the Banyamulenge, which had made him a target for police and military action in Kampala:

My brother-in-law from Congo was sent [by UNHCR] back to Uganda, where he had spent time before. When he arrived in Kampala he was arrested by the police-twice. Eventually, he became so fed up with the life in Uganda that he returned to Congo, where he was held in prison for one year in Goma. Only the volcano62 allowed him to be free again.63

Refugees facing serious security threats in Uganda have caught wind of the secondary movement policy in Kenya, and are unsure of whether they should try to make their way to Kenya. Olivier C., introduced previously, who had been detained and beaten by Rwandan agents for several months in Kampala, had been told by other refugees that he could not go to Nairobi because he would just be sent back to Kampala. He had also been informed about the delays at UNHCR, and the problems of police harassment in Nairobi. But even these potential problems did not dissuade him from wanting to seek greater safety in Nairobi. He told a Human Rights Watch researcher,

The life has become very difficult for me here. I am very afraid for my security. The Ugandans want to send us back to Rwanda. I am afraid of that. I am afraid here in Uganda and I want to go to Kenya because I am not secure here. I want to leave here and go somewhere safe.... I do not care about the life in Nairobi, I just want to leave this insecure place. I am afraid to go there and I am afraid to move around here. What can I do?64

Ugandan government officials told a Human Rights Watch researcher that Uganda had also begun applying policies against secondary movement. Since refugees from Ethiopia and Somalia must transit through Kenya to reach Uganda, they were the groups most often affected. However, as illustrated in the first part of this report, Kenya is an insecure place for many such refugees. In some cases when an asylum seeker has passed through Kenya or another ostensibly "safe" country, the individual is referred to the Special Branch and his or her file is considered by the Refugee Eligibility Committee.65

However, some asylum seekers are not even allowed to begin the status determination process. This is problematic since these refugees are not afforded the opportunity to explain whether they had security reasons for making the secondary movement. The Refugee Coordinator in the Office of the Prime Minister explained,

People who pass through Kenya don't even bother to find UNHCR. For example, a Somali who passes through Kenya and just decides he wants to go to Uganda.... No! We will not take such an individual. We also won't take people from Burundi who pass through Rwanda.66

Refugees told Human Rights Watch that they were blocked from having their security concerns in the allegedly "safe" country considered at an early stage in the process. For example, Solomon O., a twenty-seven-year-old refugee from Ethiopia was not allowed to register with the Old Kampala police because he and his wife had spent two weeks living in Kenya. Solomon fled because his father, who was actively involved in the OLF had been killed and Solomon had been informed by the military that he was next. Solomon fled with his wife to Nairobi, where they lived from April 5, 2001 until April 20, 2001. He recounted what happened next:

When I first reached Nairobi they told me to go to HCR, so I did and I received an appointment for two months later. But, I could not stay in Kenya. Everyone knows my picture and that I am wanted in Ethiopia. The Kenyan police will cause problems for me there too. I went to the police station here in Kampala and they refused to accept me, because of that time I spent in Kenya. My wife is pregnant and we have no place to sleep, we have to sleep outside near Old Kampala.67

Finally, Hiruy Z.'s story demonstrates the interrelationships between application of the policy against secondary movement and the serious human rights concerns that result from the delays and inefficiencies plaguing the UNHCR office in Nairobi. Hiruy Z. was born in 1964 and comes from Tigray, the northern part of Ethiopia. He was a member of the TPLF68 and fought against Mengistu in 1980. In addition to his military training, he was trained in Sudan and Ethiopia by the TPLF's central committee in journalism and "political mobilization." From 1997 to 2000 he worked as a radio broadcaster and managed the Relief Society of Tigray, which distributed food to internally displaced persons.

In the last year of his work with the Relief Society, Hiruy discovered that the central committee was selling relief supplies intended for displaced persons in order to raise money to erect a Sematat [a ceremonial tower] to honor three deceased army officers. Around this time he also began reporting on incidents in the war between Ethiopia and Eritrea on the radio station, arousing the suspicion of his superiors. The TPLF began to monitor his activities very closely, and questioned him about the fact that his mother was Eritrean. On February 20, 2000 he was arrested and jailed in Mak'ele, Ethiopia. While he was imprisoned, Hiruy was beaten and told to admit that he was taking food from the Relief Society to pass to the Eritreans. On May 15, 2000 he was so weakened by the beatings and hunger that he fell ill. Blood was discovered in his stools. He was taken to the hospital for treatment and escaped because a friend of his family was working in the hospital. Hiruy told a Human Rights Watch researcher what happened after he first fled to Kenya-and then later, when he fled to Uganda:

I arrived in Nairobi on July 16, 2000. I stayed in Eastleigh for two months. I went to UNHCR on July 19, 2000. I finally got my decision by April 2001. The decision said that I had to go to the Kakuma camp.... I was renting a room in a house very cheaply in Eastleigh. On the night of September 19, 2001, some Ethiopians entered my house and beat me. They took all my documents and even hurt my head, cutting it open with something sharp they were beating me with [a Human Rights Watch researcher viewed the scar on the side of Hiruy's forehead]. I passed out from the beatings.

On the morning of September 20, 2001, in the very early morning, a friend found me lying on the floor, bleeding from my head. He helped me get up and he advised me strongly to leave Kenya. He gave me money for this. I decided I would try to stay in Nairobi, but to get better security from UNHCR. I first went to the Refugee Consortium of Kenya to get assistance on that day. They saw my injuries and gave me a slip of paper to refer me to UNHCR. The slip asked UNHCR to see me about security assistance and social assistance. When I waited for an appointment at UNHCR, they gave me an appointment for two weeks later. I complained. How could I wait that long? They told me, "you go back to RCK to solve your problem." I felt I had no option [but to travel to Uganda].

On September 24, 2001 I boarded a bus for Kampala.... When I finally got to Kampala, I did not even have a coin.

I reported to the Old Kampala Police on September 28, 2001. I slept there for two months outside. When the rain comes at night, it falls on me. When the cold comes, it comes on me. I gave the first interview at the police and then I went to InterAid for the interview. The other refugees had told me not to say that I had a mandate69 already. I said to them that I didn't want to lie about my situation. I told them at InterAid that I had a mandate in Kenya. The UNHCR officer told me, "I will ask if you have a security problem. I will ask from UNHCR in Nairobi if they have a record of this." But, I knew UNHCR would not have a record of my beating because they never saw me on that day, they just gave me an appointment slip.70

Hiruy's status was not assessed by UNHCR as of April 2002 and he informed a Human Rights Watch researcher that he would not stay in Kampala if he did not receive status soon. Without status or adequate protection, he left Kampala in July 2002. His current whereabouts are unknown.

50 Agreement Between the Governments of the States of the Benelux Economic Union, the Federal Republic of Germany and the French Republic on the Gradual Abolition of Controls at the Common Frontiers (the Schengen Agreement), June 14, 1985, 30 I.L.M. 73. The Schengen Agreement was designed to eliminate European border controls of all sorts, and was later buttressed by the 1990 Convention Applying the Schengen Agreement. Convention Applying the Schengen Agreement of 14 June 1985 Between the Benelux Economic Union, the Federal Republic of Germany and the French Republic, on the Gradual Abolition of Checks at their Common Borders, June 19, 1990, 30 I.L.M. 84. Article 29(2) of the Schengen Convention reads that "[e]very Contracting Party shall retain the right to refuse entry or to expel any applicant for asylum to a Third State on the basis of its national provisions and in accordance with its international commitments."

51 Convention Determining the State Responsible for Examining Applications for Asylum Lodged in One of the Member States of the European Communities, (the Dublin Convention), June 15, 1990, 30 I.L.M. 427. The Dublin Convention, which superceded the Schengen Convention's asylum provisions, elaborated that an asylum seeker should always be returned to her country of first asylum within the European Union, where the domestic status determination procedures of that country will then govern her claim.

52 Resolution on a Harmonized Approach to Questions Concerning Host Third Countries, Nov. 30 - Dec. 1, 1992, Doc. 4464/1/95 CIREA 3.

53 The United Kingdom's 1999 Immigration and Asylum Act, for example, specifies that an asylum applicant should be removed to an available third country if the Home Secretary certifies that country as one where her "life and liberty would not be threatened" for a Refugee Convention reason. Immigration and Asylum Act, 1999, c. 33, pt. I, § 11, entered into force October 2, 2000.

54 In Australia, a federal court recently described its similar common law rule that expulsion "to a third country will not contravene Art 33 notwithstanding that the person has no right of residence in that country and that the country is not a party to the Convention, provided that it can be expected, nevertheless to afford the person claiming asylum effective protection against threats to his life or freedom for a Convention reason." See Patto v. Minister for Immigration and Multicultural Affairs, 106 F.C.R. 119, 131 (2000).

55 Ibid. ("under the [European regime,] states can and do expel asylum seekers to `safe third countries,' which in turn expel them to other countries, safe or not, and in some cases even back to their countries of origin, without there ever being any substantive review of the asylum claim"); European Council on Refugees and Exiles, Safe Third Countries: Myths and Realities, para. 32, available at ("the result is that an asylum seeker refused entry in country A and sent to country B may well also be refused entry in country B and sent to country C - which that country (B), but not country A - considers to be a `safe third country'").

56 ExCom General Conclusion on International Protection No. 87, 1999. See also "Problem of Refugees and Asylum-Seekers who Move in an Irregular Manner from a country in Which They had Already Found Protection," ExCom Conclusion No. 58, 1989 (stating that asylum seekers may be returned to countries "where they have already found protection" if "(i) they are protected there against refoulement and (ii) they are permitted to remain there and to be treated with recognized basic human standards until a durable solution is found for them.").

57 ExCom General Conclusion on International Protection No. 85, 1998. See also UNHCR, Refugee Status Determination Handbook, para. 181-88 (stressing the importance of preserving the family unity of refugees).

58 See Human Rights Watch/Helsinki, "France, Toward a Just and Humane Asylum Policy," Vol. 9, No. 12(D), October 1997.

59 Human Rights Watch interview with refugee, Kampala, Uganda, April 16, 2002.

60 See UNHCR, Policy Refugees in Urban Areas, December 12, 1997, para. 13.

61 Human Rights Watch interview with UNHCR protection staff, Nairobi, Kenya, April 2, 2002.

62 Mount Nyiragongo, ten kilometers north of Goma, began to erupt on January 17, 2002, and immediately began to engulf the town in a huge flow of lava. As of January 18, hundreds of thousands of refugees were streaming out of Goma into the safety of neighboring Rwanda. The destruction caused by the volcano left more than half a million people in the already poverty- and war-stricken region of Goma homeless. See Agence France-Presse, "Goma Burns as Tens of Thousands Flee Laval From African Volcano," January 18, 2002; AP, "Lava Consumes Congolese Town; Hundreds of Thousands Face Refugee Crisis," January 19, 2002.

63 Human Rights Watch interview with refugee, Nairobi, Kenya, April 4, 2002.

64 Human Rights Watch interview with refugee, Kampala, Uganda, April 15, 2002.

65 Human Rights Watch interview with representative of NGO, Kampala, Uganda, April 8, 2002.

66 Human Rights Watch interview with official, Kampala, Uganda, April 13, 2002.

67 Human Rights Watch interview with refugee, Kampala, Uganda, April 9, 2002.

68 In 1974 a military rebellion ended the Haile Selassie regime, ushering in a 17-year period of military rule lead by Marxist Lieutenant Colonel Mengistu Haile Mariam. Civil unrest and a worsening economy fueled the creation of several regionally/ethnically based opposition groups, including the Tigray People's Liberation Front (TPLF). Future Ethiopian Prime Minister, Meles Zenawi, joined the TPLF later in 1974 and the movement led several insurrections seeking the overthrow of Mengistu's socialist government, popularly known as "the Derg" (or "the Dergue"). The Central Committee constitutes the decision making core of the TPLF and, especially in the early stages of the movement, students made up a large part of the membership. In 1989, the TPLF merged with other opposition movements, including the Eritrean People's Liberation Front (EPLF) and the Oromo People's Democratic Organization (OPDO), to form a broader coalition -- the Ethiopian Peoples' Revolutionary Democratic Front (EPRDF). That year Meles assumed leadership of both EPRDF (also known as "the Front") and the TPLF. On May 21, 1991, with the central government on the verge of collapse and EPRDF gaining ground, Mengistu fled the country. EPRDF forces captured Addis Ababa on May 28 and established the Transitional Government of the new Federal Democratic Republic of Ethiopia (FDRE) with Meles and the TPLF at the helm. First-round elections held in 1992 failed to resolve regional/ethnic tensions and both Oromo and Eritrean movements withdrew from the EPRDF coalition, in 1992 and 1993 respectively. Meles has won all subsequent elections for Prime Minister and the Tigrayan dominated EPRDF holds 90 percent of the seats in the Council of Peoples' Representatives, primarily due to widespread boycotts of the elections by opposition groups. Differing opinions within the TPLF leadership about its relationship with the EPLF contributed to Ethiopia's war with Eritrea between 1998 and 2000. See The Economist Intelligence Unit Ltd. Ethiopia - Political Forces, April 10, 2002.

69 See description of mandate or protection letters at note 172, above.

70 Human Rights Watch interview, Kampala, Uganda, April 14, 2002.

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